© Copyright is a form of intellectual property that grants its holder the legal right to restrict the copying and use of an original, creative expression, such as a literary work, movie, musical work or sound recording, painting, computer program or industrial design for a defined period of time.
What is Fair Use?
The Fair Use Doctrine is one of the most important limitations on the exclusive rights of the copyright holder. It allows that copyright can be infringed because strict application of the law impedes the production and dissemination of works to the public. The Fair Use Doctrine was added as Section 107 of The Copyright Act of 1976 and was based on a history of judicial decisions that recognized that unauthorized infringements of copyright were "fair uses."
Sec. 107. Limitations on exclusive rights: Fair use
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include -
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
Section 107 is not meant to be specific. Rather, Congress intended for fair use to be determined on a case-by-case basis. Congress also provided some illustrative examples of when a "fair use situation" might be more likely to occur. Educational and research activities are mentioned in particular as potential fair use scenarios, since these endeavors by their very nature build on the creation of new knowledge and creative work. However, it should not be assumed that every use of a copyrighted work in an educational environment is a fair use. If a copyright holder claims that their copyright has been infringed, the defendant may argue a fair use defense. Ultimately, it is up to the court to make the final determination if a use is fair. Fair Use should be actively exercised and considered on a case-by-case basis by weighing the four factors of fair use.
Copyright © 1998 American Library Association. All rights reserved. Permission granted to reproduce for nonprofit educational purposes
Last Modified: 08/10/2008
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